10 common disciplinary hearing mistakes and how to avoid them

When any employer is taking disciplinary action against an employee it is vital that the right procedures are followed.

Even where dismissal is for a fair reason, the dismissal may still be deemed unfair if a fair process is not followed.

But when taking disciplinary action what mistakes do employers make? And how can you avoid these common pitfalls in your disciplinary procedures?

Not following any disciplinary policy at all

Ensuring that a disciplinary policy is in place and made available to all employees is essential. Without this, you are at risk of potential unfair dismissal claims.

In March 2014, the Supreme Court ruled that there is an implied contractual right to a fair disciplinary process. Although employers are no longer required to follow a statutory procedure when taking disciplinary action, they must follow a fair and reasonable procedure.

Employers are provided with clear guidelines on disciplining or dismissing an employee in the ACAS Code of Practice.

Failing to warn the employee of the possible consequences of any disciplinary action

You should inform the employee of the possible outcomes of the disciplinary action from the outset. It should not come as a surprise to the employee late on in proceedings that dismissal is a possible outcome.

By informing an employee of the possible outcome of a disciplinary hearing they will have a fair chance to defend the allegation properly.

Not providing the employee with all the relevant evidence against them

The employer is required to provide the details of the alleged misconduct or poor performance clearly to the employee. The employee should be notified of this in writing.

The employee should also be provided at the same time with copies of any evidence to be used, including witness statements. In order that they have an opportunity prior to the disciplinary hearing to prepare answers to questions which may be asked of them.

Dismissing an employee where a more appropriate sanction would be to issue a warning

In some cases the alleged misconduct may be serious enough to warrant summary dismissal. However, an employer should only decide to dismiss having considered the alternatives. There may be instances where issuing a final written warning before dismissal is more appropriate and reasonable.

Not allowing the employee to be accompanied at the hearing

An employee should be notified they have a statutory right to be accompanied at a disciplinary hearing. Whilst the statutory right only extends to having either a work colleague or a trade union official as a companion, we would advise agreeing to any reasonable request from an employee.

Lack of investigation and relying on evidence from only one source

One of the common procedural disciplinary hearing mistakes is not carrying out a proper, thorough investigation at the outset and relying on evidence from just one source. Although there may be some situations where one personâ??s evidence is enough to lead to a disciplinary action, an employer should always seek corroborative evidence.

It is always important to gather as much information as possible prior to any disciplinary action being taken.

Failing to provide an appeal stage

Employers should always give an employee the opportunity to appeal the decision made in a disciplinary hearing. The appeal process should be unbiased and should not be a forgone conclusion. You should not create a culture where appeals are never successful.

Failing to keep records of the disciplinary process

Keeping clear records of the disciplinary process is important for all employers. Should an employee issue a claim in the employment tribunal, clear records will offer you the best chance of defending the claim.

Where a witness is needed to solely rely on memory, it may be much easier for a claimant to find inconsistencies in the evidence.

Delays in handling disciplinary issues

The majority of issues should be handled within a matter weeks. Unnecessary delays in the disciplinary process are often heavily criticised by employment tribunals.

Despite this, more complex and difficult cases will naturally take longer, especially where fraud or a criminal offence has been alleged.

Having just one person deal with the whole process

Allowing the same person to conduct each stage of the disciplinary process, from start to finish, is in most cases a serious yet common disciplinary hearing mistake.